Emory Law Journal

Volume 59Issue 6

The Closed Rule

Michael Doran | 59 Emory L.J. 1363 (2010)

This Article presents the first comprehensive analysis of the closed rule in the legal literature. After situating the closed rule within its institutional and theoretical context, this Article examines the use of the closed rule by the Republican majority in the 109th Congress and the Democratic majority in the 110th Congress. The Article then undertakes both a positive and normative analysis. The positive analysis generalizes three prominent accounts of the closed rule from political theory and argues that the closed rule can more accurately be understood as a broadly managerial instrument for maintaining order on the House floor. The normative analysis identifies and discusses several undesirable effects of the closed rule—its tendency to increase legislative fragmentation and redundancy, its facilitation of third-party capture, and its weakening of bipartisan cooperation and compromise.

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The Rule of Law Unplugged

Daniel B. Rodriguez, Mathew D. McCubbins, Barry R. Weingast | 59 Emory L.J. 1455 (2010)

The concept of rule of law has become unplugged from theories of law. Scholars clearly have more work to do in understanding the rule of law and designing institutions to realize the objectives for which this grand project is intended. In this Article, we revisit the concept of the rule of law in order to unpack the theoretical and operational assumptions underlying scholarship and reform efforts. We do so from the perspective of legal and positive political theory, and we interrogate various institutional devices (such as constitutionalism and the independent judiciary) in order to shed light on how the construct of the rule of law is being put into service on behalf of cross-national reform initiatives.

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A Comment on The Rule of Law Unplugged

Jeffrey K. Staton | 59 Emory L.J. 1495 (2010)

The gap between institutional research and advocacy is in part a failure of institutionalists. If advocates want clear strategies for reform and scholars cannot offer them, the two worlds may understandably grow apart. But it does seem that our desire for reform has gotten out in front of the science that should support it. This does not mean that we should scrap the rule of law concept or give up on trying to reform states that systematically violate rule of law values. On the contrary, like MRW, I believe strongly that the rule of law is a worthy aspiration, and I am optimistic enough to believe that the science can catch up to our reform interests. That said, The Rule of Law Unplugged demands that we carefully reconsider the ways that we research the subject and ultimately advocate for change.

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Lawless By Design: Jurisdiction, Gender and Justice in Indian Country

Laura E. Pisarello | 59 Emory L.J. 1515 (2010)

To reduce crime, and sexual violence in particular, in Indian Country, Congress should “overturn” Oliphant and grant tribes direct criminal jurisdiction over all people—Indian or not—in Indian Country. Congress should also remove sentencing limits and explicitly grant tribal courts authority to adjudicate all crimes. Accordingly, this Comment discusses the effects of present legal hurdles to prosecuting those who commit crimes in Indian Country. It shows how Congress could remove these legal barriers and addresses possible constitutional concerns about this proposal. This Comment outlines the legal benefits of this proposal, including a more harmonized and modern legal framework that enhances tribal institutions and sovereignty. This Comment also articulates the law enforcement benefits of greater reliance on tribal authorities, and it explains why tribes are better equipped than states to respond to sexual violence and why an indigenous response to rape is crucial to strengthening tribal institutions.

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Test at Your Own Risk: Your Genetic Report Card and the Direct-to-Consumer Duty to Secure Informed Consent

Deepthy Kishore | 59 Emory L.J. 1553 (2010)

Selling access to individual genetic information has transposed the physician-patient relationship into a company-consumer context, calling for a novel examination of how consumer and patient protections overlap and where federal regulation ends and tort law begins. This Comment applies principles of products liability and informed consent to the context of genetic testing to argue that tort liability, rather than greater regulation of genetic tests, is the best way to protect consumers of DTC genetic testing. This Comment demonstrates that without professional assistance, consumers risk misinterpreting the meaning of their genetic test results and may even be driven to take drastic actions based on that information.

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